Considerations for employers following B.C. controlled drugs exemptions

Sep 13, 2022

A recent article published by Mondaq and authored by Katelin Dueck, an associate at Roper Greyell LLP – Employment and Labour Lawyers, discusses essential considerations for employees following the B.C. exemption from the Controlled Drugs and Substances Act.

Starting on January 31, 2023, the exemption to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “Act”) granted to B.C. will allow adults in the province to legally possess small amounts of specific controlled substances without incurring criminal charges. According to Dueck, while this exemption is unlikely to “significantly disrupt the status quo” regarding drugs and alcohol in the workplace, employers need to take certain issues into consideration.

A statement released by the B.C. government states that the exemption is “a critical step toward reducing the shame and fear associated with substance use.” Accordingly, Dueck suggests that this may lead to “an increased openness to discussion around drugs, [which may] more frequently trigger an employer’s duty to accommodate where a substance use disorder is at issue”. In addition, she suggests that the exemption may require employers to become more aware of possible employee disabilities related to drug addiction.

Having a drug and alcohol testing policy is essential for employers in promoting workplace safety and reducing the risk of incidents related to drug and alcohol use. Due to the exemption, reliable testing is becoming highly relevant in the workplace.

Dueck suggests that it is essential for B.C. employers to update drug and alcohol policies in the workplace in the upcoming months to ensure that they include reference to the exemption where appropriate, as well as to ensure that management is aware of the potential impact of the exemption on the organization. Specifically, this applies to safety-sensitive workplaces, as well as workplaces where the exemption will not apply.

Finally, the exemption could potentially affect the “reasonableness analysis,” which courts and tribunals use to determine whether drug testing was appropriate in order to balance an employee’s privacy interests with the business and safety concerns of the employer. Typically, drug testing is permitted if: (i) an employee is entering a safety-sensitive position for the first time; (ii) there are reasonable grounds to believe the employee is impaired; (iii) the employee was involved in an incident and the condition of the employee is a reasonable line of inquiry; or (iv) the employee is returning to work after testing positive for substance use or self-disclosure of a substance addiction or dependency. According to Dueck, due to the exemption, it is possible that suspicion of impairment will be considered more reasonable and it will become easier to establish the need for drug testing in the workplace.

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